Workman v. Taylor

• Citation: 24 Mo.App. 550
• Parties: SAMUEL WORKMAN, Respondent, v. BENTON P. TAYLOR, Appellant.
• Decision Date: 08 February 1887
• Court: Court of Appeals of Kansas

24 Mo.App. 550

SAMUEL WORKMAN, Respondent, v. BENTON P. TAYLOR, Appellant.

Court of Appeals of Missouri, Kansas City.

February 8, 1887

APPEAL from Johnson Circuit Court, HON. NOAH M. GIVAN, Judge.

Affirmed.

The case is stated in the opinion.

SAMUEL P. SPARKS, for the appellant.

I. The court erred in overruling appellant's motion to dismiss respondent's appeal. There was no final judgment by the justice of the peace, which is essential to the right of appeal in every case, in whatever court. Boggess v Cox, 48 Mo. 278; Rogers v. Gosnell, 51 Mo. 466; Moody v. Deutsch, 85 Mo. 237; 1 Rev. Stat., sect 3039; Davis v. Perry, 46 Mo. 449; Jones v Snodgrass, 54 Mo. 598; Walser v. Halsey, 61 Mo. 445; Jones v. Evans, 80 Mo. 565. (a ) Where the merits of the matters in controversy have not been passed on the action of the court is no bar to another suit. Bell v. Hoagland, 15 Mo. 360; Wright v. Salsbury, 46 Mo. 26; Clemens v. Murphy, 40 Mo. 121; Wells v. Moore, 49 Mo. 229. (b ) The right of appeal is to be determined from the judgment entry alone. See authorities, supra.

II. The recitals in the judgment of the inducement to the justice action cannot change the nature and form of the judgment and make that a final judgment by intendment, which is not such by its terms.

III. The court should have allowed the motion for a new trial, on the ground of defendant's surprise at the testimony of plaintiff, in regard to the use of the platform wagon scales, by Taylor Bros., on the affidavit filed in support of motion. This testimony was not cumulative, but new testimony, which tended to prove that there was a partial failure of the consideration of the note, since plaintiff says he charged the use of the scales entirely to defendant, and this went to make up note, and the facts appear, by affidavit of F. A. Martin, that for a long period of time defendant did not have the use of the scales.

O. L. HOUTS, for the respondent.

I. Appellant's motion, filed in the circuit court to dismiss respondent's appeal from the justice's court, was properly overruled. Weeks v. Etter, 81 Mo. 375; Plank Road Co. v. Robinson, 27 Mo. 396; Rev. Stat., p. 502, sect. 3011; Morse v. Brownfield, 27 Mo. 224; Hazeltine v. Reusch, 51 Mo. 50; Monday v. Clements, 58 Mo. 577; Freeman on Judgments [3 Ed.] sect. 53; Rev. Stat., p. 510, sect. 3052; Kelley v. Railroad, 86 Mo. 681. Appellant, by going to trial on the merits, waived his right to except to the action of the court in overruling the motion.

II. Appellant failed to make out a case of surprise, entitling him to a new trial, and the court did not err in overruling the motion for a new trial. Peoria Bragg and husband v. City of Moberly, 17 Mo.App. 221; Hurlburt et al. v. Jenkins et al., 22 Mo.App. 572.

III. Respondent respectfully submits that this appeal is frivolous, and asks that judgment be affirmed, with ten per cent damages.

PHILIPS P. J.

The plaintiff sued defendant in a justice's court, on a promissory note. Both parties appeared at the trial. The justice's transcript recites, inter alia, that: " Plaintiff comes represented by his son, Samuel Workman, Jr. Defendant comes, also, and pleads a failure of consideration; that he did not receive any value on said note. Dismissed for want of consideration."

From this action of the court plaintiff appealed to the circuit court. When the case was reached for hearing the defendant moved to dismiss the appeal, because there was no final judgment in the justice's court. This motion was overruled. The cause was tried de novo, both parties participating in the trial. The court, sitting as a jury, found the issues for the plaintiff.

From the judgment entered thereon the defendant prosecutes this appeal.

I. The only question of any importance presented is, as to the sufficiency of the entry in the justice's docket, to authorize the appeal. We are of opinion that it is sufficient. The authorities relied on by appellant are cases respecting judgments of the circuit court, where form is important, owing to the dignity of the court, and the learning that is supposed to characterize those who preside over its deliberations, and of those who enter up its proceedings. But in justices' courts we are to overlook mere matters of form, and view their proceedings and records according to the merits, and with liberality. To this end the statute provides that, " no judgment rendered by a justice of the peace shall be deemed invalid, stayed, or in any way affected by reason of the neglect or failure of the justice to enter the same within the time prescribed, or by reason of any informality in entering or giving such judgment, or other entry required to be entered in the docket, or for any other default or negligence of the justice, by which neither party shall have been prejudiced."

And to make this principle of leniency, respecting the informality of the proceedings of these courts, more conspicuous, in the...